Joe Biden appears at Syracuse University in 2015 during an "It's On Us" event to raise awareness of sexual assault on campuses.
As vice president, Biden sought to remake the rules of sexual culture on college campuses and beyond. He succeeded—and now is suffering for it.
Joe Biden is now living in the world of accusation he helped to create. It is one of peril for the accused, in which they are subjected to expansive definitions of sexual misconduct and little benefit of the doubt. Biden helped to bring it about as the leader of the Obama administration’s cornerstone effort to end sexual assault at colleges and universities, a worthy undertaking that quickly spiraled into overreach. The goal, as Biden often says, was to remake sexual culture on campuses and in society at large—a goal that’s reached remarkable fruition in the #MeToo era. Now, as he mulls whether to enter the presidential race, Biden is finding himself ensnared by some of the doctrines he has advocated over the past several years.
In the past few days, Biden’s not-yet candidacy has been rocked by accusations of unwanted touching. Last week, Lucy Flores, a former Democratic candidate for lieutenant governor of Nevada, said that at a campaign rally in 2014, the then-vice president, standing behind her, placed his hands on her shoulders, sniffed her hair and gave the back of her head a “big slow kiss.” A few days later, Democratic former congressional aide Amy Lappos said that at a 2009 event, Biden put his hands on her face, pulled her to him and rubbed his nose with hers. This week, two more women have come forward—a student who said he touched her thigh and hugged her “just a little bit too long,” and a writer who said his hand strayed from her shoulder and moved down her back before her husband intervened.
These women’s accounts have been bolstered by the many circulating videos—under the label “Creepy Uncle Joe”—largely compiled from swearing-in ceremonies at which Biden presided as vice president, and where he welcomed incoming officials’ families. On view is the oddly ritualized way that Biden interacts with women and girls: the hair stroking and sniffing, persistent whispering, touching and insisting that young female family members stand near him.
Biden, whose spokesman did not respond to requests to comment for this article, has many defenders, including women who say they welcomed his touch. And while the accusers say they feel he violated their personal space, they generally agree that what he did was minor, and they do not call it sexual. Most everyone seems to agree that Biden’s actions fall into a gray zone. And yet these gestures are raising questions about his candidacy. The New York Times’ Michelle Goldberg wrote recently that she doesn’t think Biden is a sexual harasser, but that the accusations and his response help to demonstrate that his “time is up.” There is an irony at work here: Biden helped to make possible a world in which long-ago and trivial accusations can upend one’s reputation and career.
When Biden became vice president, one of his early acts was the announcement in June 2009 of a new position under his aegis: White House adviser on violence against women. Addressing violence against women has been career-defining for Biden. As a senator, he oversaw the passage of the Violence Against Women Act in 1994, what he calls his “proudest legislative accomplishment.” He continued with the cause as vice president, with the Obama administration’s focus on what it said was an epidemic of sexual violence by male students against their female classmates on college campuses. Biden became the top advocate and White House point man for much of the administration’s policy on the issue.
The undertaking was laudable. There is no doubt that for too long, on too many campuses, too many women who had been sexually violated and had their claims diminished or dismissed. But from the beginning, the demands the administration made on schools, and the way schools carried them out, alarmed civil libertarians.
In April 2011, Biden and Education Secretary Arne Duncan announced the release of a bombshell letter, with the bland greeting “Dear Colleague,” to the country’s 4,600 institutions of higher education. It laid out new directives for how campuses were to root out and punish sexual assault. It was the beginning of a concerted effort that radically remade how students could interact sexually, with severe penalties for those who violated increasingly expansive codes of conduct. The accused were to be judged under the lowest standards of evidence, the definitions of misconduct were widely broadened, third-party reports could trigger an investigation even if the alleged victim did not think there had been a violation, and more. Title IX is the federal law that prohibits discrimination on the basis of sex in education. Under Obama administration insistence, college offices tasked with administering Title IX became vast and powerful bureaucracies, and students were encouraged to report any perceived violation.
In a 2015 speech at Syracuse University about sexual harassment and assault, Biden made his oft-repeated assertion that, “We need a fundamental change in our culture. And the quickest place to change culture is to change it on the campuses of America.” In other words, campuses were laboratories where government officials could impose their vision of how males and females should interact.
Among the cultural shifts orchestrated by the Obama administration was the assertion that evaluation of campus claims of sexual harassment and assault rest on the subjective feelings of the accuser. That meant it was irrelevant whether the accused had an intention to abuse, harm or offend. This was codified in 2013, with the joint release by the departments of Education and Justice of what they called “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” An analysis by the Foundation for Individual Rights in Education, a civil liberties group, found that the administration had abandoned the principle that claims of harassment should be evaluated based on an “objective” or “reasonable person” standard.
The Obama administration’s efforts to expand the definitions of what constituted a possible sexual violation were thoroughgoing. In 2014, the White House issued a report called “Not Alone,” which provided schools with a model “climate survey” that gave this definition of punishable behavior: “Sexual violence refers to a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; unwanted touching; and unwanted oral, anal, or vaginal penetration or attempted penetration.” In other words, the Obama administration expanded the definition of sexual violence to include compliments, or the kind of touching—often unasked for, and sometimes unwelcome—that Biden has engaged in for years.
Because of all these edicts, accusations that emerged from consensual encounters, false reports or trivial contact have resulted in investigations and sometimes severe penalties for accused young men. (I wrote about some of these cases in a series in the Atlantic and in another article in Slate.) During Biden’s years as vice president and since, he has characterized most of the cases adjudicated by Title IX offices as criminal in nature. But that isn’t so. Instead, these disputes often arise out of sexual encounters that both parties agree began consensually—often lubricated by alcohol—and that turn on whether the accused explicitly got the continuous stream of consent required by the now widespread campus rule known as “affirmative consent.” Biden, a fervent advocate of affirmative consent, has not asked for permission from the people, often strangers, he touches. He has just assumed his touch is welcome.
Biden has also failed to acknowledge that male students punished under the system he helped to create have been increasingly fighting back. They have filed more than 400 civil suits, contending that they have been unfairly accused and deprived of their rights. These suits have been getting increasingly favorable—sometimes outraged—rulings from judges. In a recent City Journal article, historian KC Johnson points out that “Biden responded with fury to Secretary of Education Betsy DeVos’ attempts to create fairer procedures for adjudicating campus sexual-assault claims.”
Biden continues to insist that male college students are crude brutes, ever ready to attack their female classmates. In an April 2017 interview in Teen Vogue, he said that when he explains consent to male students, they are astounded: “I’ve had young men on campuses say to me, ‘I’ve never thought of it that way. … As long as she wasn’t screaming and kicking me and yelling help, then it was probably OK.’ It’s not OK. It’s not OK unless she can affirmatively consent.” In that same interview, he explained what he believes consent entails. “We’re trying to let young men understand that without consent, meaning saying, ‘Yes, it is OK to touch me’ … then it is not consent,” he said. Biden also seems to have no recognition that campus encounters can be filled with ambiguity and mixed signals. In an April 2016 speech at the University of Nevada Las Vegas, he mocked the idea that sexual assault allegations might be “complicated,” and told the assembled students that they should “ostracize the abusers” and “make them the pariah on campus.”
In a statement in response to the Flores and Lappos accusations, Biden wrote, in part, that over many years, “I have offered countless handshakes, hugs, expressions of affection, support and comfort. And not once—never—did I believe I acted inappropriately. If it is suggested I did so, I will listen respectfully. But it was never my intention.” But if Joe Biden were a college student, the very stroking, smelling and touching he now characterizes as “expressions of affection”—ambiguous as those actions might be—could easily result in his being investigated by the Title IX office, and subjected to education-disrupting punishment.
As a demonstration of the success of Biden’s efforts to engender a cultural shift, he is now being told—even by women of his own generation and his own party—that he doesn’t understand the new unwritten rules he helped to bring about. In response to the Flores accusation, Senator Jeanne Shaheen, Democrat of New Hampshire, praised Flores’ courage in telling of her encounter with Biden and said, “All of us, including the vice president, need to continue to work on changing our culture.” House Speaker Nancy Pelosi, who apparently understands better than Biden the new terms of engagement, said in a Politico interview this week, “He has to understand, in the world that we’re in now, that people’s space is important to them, and what’s important is how they receive it and not necessarily how you intended it.”
He now says he’s gotten the message. In a video released Wednesday on Twitter, Biden explained that throughout his life he has touched people with gestures of support and solace—as many have similarly reached out to him. But he understands, he said, that “social norms have begun to change. They’ve shifted, and the boundaries in protecting personal space have been reset. And I get it.” He said he will always believe that governing, and life, are about connecting with people—but that he will adjust his own way of connecting in light of changing times.
Biden appears to have been blindsided by the reaction to his own behavior, but he has been making the case that it’s time to overhaul the assumptions on which our legal system is built. Just last week, at a ceremony for the Biden Courage Awards honoring student sexual assault activists, he said, “This is English jurisprudential culture, a white man’s culture. It’s got to change.” Anglo-American jurisprudence regarding women, Biden argued, is founded on the ancient concept of “rule of thumb.” As he explained it, in 14th-century England, a man was limited to beating his wife with a stick no bigger than the circumference of his thumb. But his assertion about the origins of that phrase is a canard. (It is thoroughly debunked in this video by American Enterprise Institute scholar Christina Hoff Sommers.)
Biden is a lawyer, and once was the chairman of the Senate Judiciary Committee, so he should know that Anglo-American jurisprudence has brought us hard-won principles such as the rule of law, due process and the presumption of innocence. Whether or not Biden makes another run for the presidency, it would be salutary if his recent, painful experience of accusation makes him consider that we should honor these principles. In a world of accusation, all are potentially vulnerable.
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